Why Obama Was Wrong to Slap the Supremes

Sad to say, the highlight of President Obama’s first State of the Union address on Wednesday was when he took the opportunity to openly condemn the Supreme Court. For the first time in memory, a president lashed out with the justices seated just a few feet away from him. Talk about “in your face”! The attack from the president prompted his equally-partisan supporters in Congress to erupt in raucous applause. This marks a low point for constitutional government in America, where the third branch of government is publicly humiliated by our head of state, and where an entire political party joined in this shameful display of disrespect for our Constitution.

During his address President Obama took the utterly unnecessary step of singling out the high court, criticizing its decision last week in Citizens United v. FEC to strike down a law making it a felony for people to pool their money together to speak out during election season.

At the outset, it must be noted how gratuitous a slap this was. Our president could have simply mentioned that the influence of corporate groups should be kept out of politics, and he could have gone on to push for legislation advancing that purpose.

By the way, it’s a complete mischaracterization of what the Citizens United case was all about, and Obama’s comments about allowing foreign corporations to interfere with our politics was outright false. Unfortunately, the public commentary on this issue shows how many talking heads don’t understand the first thing about this decision, but that’s another column. For a view from someone who has his facts straight check out Judge Napolitano’s rebuttal to Obama in the Fox Forum here. But I digress…

Instead of holding back, Obama said that the Court’s decision would, “open the floodgates to special interests” and called on Congress to, “pass a bill that helps right this wrong.” He couldn’t have been more insulting to the court unless he had added, “And the opinion I’m referring to was written by Justice Anthony Kennedy, sitting right there in the front row of this center section.”

Federal judges are classy and thoughtful people. Two things a president looks for in judicial nominees are temperament and character. These attributes also manifest themselves in social settings, where judges are typically poised and pleasant.

When a president’s team vets candidates for our highest court, part of that vetting process is determining who will be able to handle hostile senators during confirmation, and a hostile segment of the public at all times -- for the rest of their lives. Every president looks for someone who personifies “grace under fire.”

I have had the privilege of speaking with four of the current Justices—both liberal and conservative—on the court, including the opportunity to speak with Justice Samuel Alito on several occasions. While their personalities vary, all of them are very fine and gracious individuals who conduct themselves with the utmost of dignity and civility.

None of them would have taken the dirty, cheap shot that Barack Obama did during the State of the Union.

As many of you know by now, after watching clips of this on television, this unseemly swipe evoked a reaction from Justice Alito. Hearing Obama grossly mischaracterize the court’s work, Alito was caught on camera shaking his head, quietly (and accurately) saying, “Not true.”

More telling, however, was the reaction of the three liberal justices sitting there. Or more to the point, their non-reaction. Although all three—Ruth Bader Ginsburg, Stephen Breyer and Obama’s pick, Sonia Sotomayor—joined a strongly-worded dissent in the Citizens United case, they did nothing to legitimize Obama’s attack. Instead, they sat stone-faced and expressionless, as the Court was impugned.

Setting aside Republicans, just look the most recent Democratic president. Bill Clinton did not disrespect the Court after the Court struck down the Gun-Free School Zones Act in 1995, nor part of the Brady Act gun-control law in 1997, nor the Violence Against Women Act in 2000. All were top legislative priorities for Democrats, all were struck down by a narrow 5–4 margin, and all were considered controversial by some.

When you contrast the pure professionalism and stately demeanor of the justices present—both conservative and liberal—with the glib, petty vindictiveness of Barack Obama in that moment, the different is so stark that it is astounding.

Under our Constitution, the Supreme Court is the ultimate expositor of what our Constitution means. In its written opinions, the Court does not criticize the president’s execution of his duties, and is likewise respectful of Congress’ legislative work. Respect for the separation of powers demands that our president show the same regard for the Supreme Court’s execution of its duties.

Disrespect for the Supreme Court betrays disrespect for the Constitution which the Court interprets. Presidential rhetoric against a nation’s courts is commonplace in oppressive regimes where an imperial leader wields absolute authority, where it fosters disrespect for the rule of law.An independent judiciary is essential to a free society based on the rule of law. Wednesday’s State of the Union swipe was an ugly affair in that regard. Obama’s rhetoric and disgraceful partisanship politicizes our courts, pushing us down a slippery slope where we dare not tread.

Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union. He is a frequent contributor to the Fox Forum.